overview

[1] The Respondent (“father”) seeks costs of his motion heard on June 29, 2021. Various orders were made. The father seeks full recovery costs from the Appellant mother (“mother”) in the amount of $11,000. He submits that full recovery is justified because his success on the motion exceeded the offers to settle that he served, and the mother’s conduct was unreasonable and is “borderline” bad faith. He asks that the costs be enforced as a “support order” by the Family Responsibility Office (“FRO”) or set off against child support that he owes going forward. There are no current arrears of child support.

[2] I found that there is good reason to believe that the mother’s appeal is “a waste of time, a nuisance, or an abuse of the court process” and ordered the mother to post security for costs. As well, I found that the mother’s conduct is “unreasonable, excessive and abusive”. She refuses to comply with the court orders made against her, she files excessive and unnecessary material and does not comply with her obligation to promote the primary objective of the Family Law Rules, O. Reg. 114/99. Specifics of this conduct are set out in the Reasons for Decision (2021 ONSC 5395).

[3] I ordered the mother to pay $24,436.63 in security for costs for her appeal of Justice Finlayson’s orders dated November 3, 2020 and January 26, 2021. If the mother fails to comply, I ordered that the father may bring a 14B motion to dismiss the mother’s appeal. As well, I ordered that that “applicant shall not bring any further motions or seek any relief in this court unless she complies” with the orders made against her and leave to seek relief is granted by Justice Shore.

[4] The mother submits that the costs requested are “overly excessive and severely unreasonable”. She states that a motion in family court is only worth “approximately $500.00-$1500.00 maximum, even at counsel rates”. She submits that she cannot afford to pay costs and that costs of the father’s motion should be “on pause until my appeal is either dismissed or my motion for leave to appeal the orders of J. Horkins is heard by the Divisional Court”. Alternatively, she asks that costs be no more than $1,500 and that she be allowed to pay $20 to $40 a month towards costs without enforcement by FRO.

[5] The mother’s unreasonable, excessive, and abusive conduct has continued. The mother brought a motion for child support in the Ontario Court of Justice without complying with the orders of Justice Finlayson. This motion resulted in three attendances before Justice Katarynych.

[6] Justice Katarynych directed the father’s counsel to provide this court with her July 14, 2021 endorsement. In her endorsement, Justice Katarynych stayed “further action in this case” because the mother was not following the orders of Justice Finlayson. Justice Katarynch ordered: “Until there is proof of compliance with Justice Finlayson’s order- no further action will be scheduled in this court in relation to the two voluminous filings. The issue of Section 7 expenses will be on hold-, as well the issue of costs claimed ... the fact that [the mother] is representing herself … does not give her licence to ignore” Justice Finlayson’s orders. Further, the endorsement states that “until/unless any other decision is made as a result of that appeal, the order of Justice Finlayson is in full force and to be obeyed”.

[7] The father states that the mother has served the father with a notice of appeal from the order of Justice Katarynych.

Legal Framework

[8] The Family Law Rules are designed to foster four fundamental purposes: to indemnify successful litigants for the cost of litigation, to encourage settlements, to discourage and sanction inappropriate behaviour by litigants, and to ensure that cases are dealt with justly: Mattina v. Mattina, 2018 ONCA 867.

[9] Pursuant to rule 24(1) there is a presumption that a successful party is entitled to costs. This presumption is subject to the factors in rule 24(12) that the court "shall consider" in "setting the amount of costs" as follows:

(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party's behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter.

[10] As this rule states, proportionality and reasonableness are the "touchstone considerations" to be applied when fixing the amount of costs: Beaver v. Hill, 2018 ONCA 840 at para. 12.

[11] Finally, the Family Law Rules expressly contemplate that a party shall receive full recovery costs in specific circumstances: when a party has acted in bad faith - rule 24(8) and when a party has beat an offer to settle - rule 18(14).

Analysis

[12] The father is clearly entitled to costs of his motion given his success. While his request for orders under s. 140 of the Courts of Justice Act was denied, significant orders were made that require the mother to post security for costs. Orders were also made to prevent further motions for relief without compliance, and assuming compliance requiring the mother to seek leave.

[13] The Bill of Costs is reasonable. The disbursements are only $28.50. The fees and HST total $11,932.80. Counsel’s hourly rate is $300. He is a 2014 year of call. The motion was very important to the father. Understandably, he was seeking orders to control the mother’s unreasonable, excessive, and abusive litigation conduct. The hours spent on the motion reflect the fact that the mother filed thousands of pages of material contrary to the practice direction. The motion lasted 1.5 hours.

[14] I reject the mother’s position that no costs or minimal costs should be awarded because she is impecunious. A party's lack of income and assets, though relevant, is not a shield to unnecessary litigation, particularly in this case given the ongoing nature of her abusive litigation conduct (see M.B. v. S.B.B., 2019 ONSC 3960 at para. 45). Her submission that the father’s request for costs be paused while she seeks leave to appeal this court’s orders, is contrary to the fundamental purposes of a cost order as set out above in Mattina. Furthermore, a decision on costs is part of the motion and must be completed. The father is entitled to costs given his success.

[15] The father served two offers to settle. The first offer was made on December 7, 2020, and the second on April 27, 2021. The first was a severable offer and was served well before the motion was scheduled. The second offer was served two months before the motion. Neither offer was accepted. The mother served no offers to settle.

[16] The first offer gave the mother until December 21, 2020 to withdraw her appeal of Justice Finlayson’s orders on a no costs basis. Part two of the offer required the mother to post $6,000 for security for costs in 65 days failing which the father would bring his motion to dismiss the appeal.

[17] When the second offer to settle was served the motion was scheduled for June 29, 2021. This offer required the mother to post $6,000 in security for costs in 30 days and provided that the failure to do so resulted in the dismissal of the mother’s appeal. If the mother accepted the offer by May 3, 2021, there would be no costs payable for the father’s motion. If accepted after May 3, 2021, then costs of the father’s motion would be payable by the mother on “partial indemnity basis”. This is the offer that was open when the motion was heard.

[18] The father “beat” his second offer to settle in part. The amount of security for costs that this court ordered far exceeds the security in the offer to settle. However, the order is not as favourable as the offer when the consequences of non-compliance are compared.

[19] Under the order, the father has the right to bring a 14B motion to dismiss the appeal if security for costs is not paid. The outcome of the motion will depend on the judge’s decision. In contrast, the offer provides that the appeal “shall be dismissed” if security is not posted and if necessary the father will bring a motion (presumably to secure the order if the mother refuses to cooperate). Family Law Rule 18(4) is not engaged, because the second offer to settle is not as favourable as the order made.

[20] Nevertheless, rule 18(16) states that the court may take into account any written offer to settle when deciding costs and I do so. The two offers to settle show that the father gave the mother ample time to consider the offers to settle. These offers set out a fair resolution of her appeal and the security for costs. The father was proactive in trying to avoid his motion and the mother simply refused to act reasonably.

[21] The father also argues that he is entitled to full recovery costs because the mother’s behaviour is “borderline bad faith”. There is no question that the mother has and continues to engage in unreasonable, excessive, and abusive conduct. She chooses to ignore court orders, Practice Directions and the Family Law Rules. Her unreasonable conduct is a factor in deciding the costs of the father’s motion.

[22] As Justice Katarynch stated in her endorsement, the child support issue between the parties “can be resolved through plain obedience to the court ordered condition for management of section 7 expenses made by Justice Finlayson”.

[23] The mother’s approach to the simple issue of child support and line 150 income is irresponsible and a wasteful use of the court’s limited resources as explained by this court’s Reasons for Decision:

[38] The issue of child support in this case should not be complicated. It should not require multiple court attendances. The father is a T4 employee and the mother refuses to accept this reality. His line 150 income should be used to fix child support under the Child Support Guidelines, O. Reg. 391/97. Yearly court attendances and appeals should not be necessary for this single straightforward issue. The mother continues to pursue allegations against the father and his income that have no factual basis. Costs orders against her have no impact. She has made it clear that she has no intention of paying costs, even if ordered to do so. The outstanding costs orders against her total $13,436.36 (excluding interest). This includes Justice Finlayson’s costs order of $9,436.63.

[24] The mother does not have the right to continue with this irresponsible manner of litigating a simple issue. I adopt the concern as expressed in Carmichael v. Carmichael 2019 ONSC 7224 at para. 13 as follows:

Parties to litigation must understand that court proceedings are expensive, time-consuming and stressful for all concerned. They are not designed to give individual litigants a forum for carrying on in whatever manner they may choose, oblivious to the impact of that conduct on the other side and, perhaps most importantly for the purposes of this case, oblivious to the mounting costs of the litigation: Lawrence v. Lawrence, supra, at para. 54.

[25] Rule 24(8) requires a fairly high threshold of egregious behaviour. As a result, a finding of bad faith is rarely made (see D.D. and F.D. v. H.G., 2020 ONSC 1919 at para. 34). In S.(C) v. S.(C), 2007 CanLII 20279 (ON SC), [2007] O.J. No. 2164 at para. 17 the court defined bad faith as follows:

In order to come within the meaning of bad faith in subrule 24(8), behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

[26] The courts have warned the mother about her behaviour. Her unacceptable behaviour has caused the father to incur “a small fortune in legal expenses” Costs orders are made, and the mother does not pay them. She has boldly stated that she will never pay costs orders and yet she orders transcripts for appeals. The father states that the cost of litigation is impacting his ability to support his family. The mother has been given fair warning that her long standing conduct is unacceptable, is wasting the court’s resources and causing unnecessary costs to be incurred to the detriment of the father. We have reached the point where a continuation of such conduct can only be seen and understood as the mother’s intention to inflict financial harm on the father. Should it continue, it will be open to a court to find that she is acting in bad faith.

[27] Taking into consideration the mother’s unreasonable, excessive, and abusive conduct and the principles of reasonableness and proportionality, I fix the father’s costs at $7,000 inclusive of all fees, disbursement and HST. This amount is reasonable and proportionate to the factors in rule 24(12).

[28] The father asks that the costs order be enforceable as support by FRO. Judges have a broad discretion to apportion costs related to the payment of support and to order enforcement of those costs by FRO under the Family Responsibility and Support Arrears Enforcement Act S.O. 1996, c. 31. Typically, costs that are enforced are owed to the recipient of support. The issue is whether costs owing to the payor of support should be enforced.

[29] In MB v. SBB, 2019 ONSC 3960 at paras. 50-55, the court considered this issue and decided that it is “outside the scope of section 1(1) (g) of the FRSAEA to characterize as support, a costs award owing to a support payer”. I adopt this reasoning as set out below and decline to make an enforcement order:

The relevant sections of the Family Responsibility and Support Arrears Enforcement Act 1996 provide as follows:

”support order” means a provision in an order made in or outside of Ontario and enforceable in Ontario for the payment of money as support or maintenance, and includes a provision for,

(g) interest or the payment of legal fees or other expenses arising in relation to support or maintenance.

51 The purpose of section 1(1) (g) is to support the efforts of dependant spouses, or parents who seek child support by creating a mechanism that recovers some or all of the costs necessary to obtain an Order. The court has discretion to allocate what portion of the costs are attributable to support, particularly when there are multiple issues being litigated.

52 In Clark v. Clark, Justice Cronk of the Court of Appeal wrote that it was open to the court to designate a costs Order to be enforceable as “support” in accordance with section 1(1) (g) of the FRSAEA in any proceeding in which child and spousal support were central issues, provided that a claim for support had been made. In Clark, the trial judge had ordered that costs be enforced as spousal support to prevent the costs from being “anything more than illusory.” But because the costs recipient had never claimed spousal support, the Court of Appeal remedied the final Order to provide that costs were to be enforced as child support, even though it was a claim that the trial judge dismissed.

53 Does the ratio in Clark survive when applied to a support payor? In 2014 Justice Chappel considered whether costs payable to a support payor could be enforced as support in Durso v. Mascherin,

Section 1(1) of the Act provides that a “support order” includes “interest or the payment of legal fees or other expenses arising in relation to support or maintenance...” The Respondent argues that an order for costs in favour of a support payor falls within this definition. I do not agree. In reaching this decision, I have considered the purpose of the Act, which is to address issues relating to the enforcement of orders for spousal and child support in favour of support recipients. The enforcement of costs orders in favour of payor spouses does not fall within the scope of this purpose. I have also considered the first part of the definition of “support order,” which refers to a provision in an order “for the payment of money as support.” The items listed in subparagraphs (a) to (f) of the definition of “support order” are all examples of provisions relating to support for recipients. A review of the definition in its entirety supports a conclusion that the reference to legal fees and other expenses referred to in subparagraph (g) was intended to relate to legal fees and expenses associated with obtaining an order for the payment of support.

54 In Fielding v. Fielding Justice Monahan came to the same conclusion. He first reviewed the purposes of the FRSAEA and then the interpretation of “support Order” per section 1(1) (g). At paragraph 90 he writes: (my emphasis added)

I am unclear as to whether it is open to me to designate a costs order in favour of Craig as spousal support for purposes of the FRSAEA. Only where legal fees “aris[e] in relation to support or maintenance” is it open to the court to designate such fees as support. But because there is no support order in favour of Craig, the legal fees payable by Victoria to Craig do not relate to, or flow from, any underlying order for support or maintenance. Since Craig is a payor and not a recipient of support, it is difficult to see how a costs order in his favour can be characterized as relating or ancillary to support or maintenance. This interpretation of “support order” seems consistent with the overall purpose of the FRSAEA, which is to provide a scheme for the enforcement of support obligations of payors, as well as the support entitlements of recipients. Designating the costs order in favour of Craig as “support” could mean that the Director of FRO would be required to reduce the child or spousal support otherwise payable to Victoria, which seems at odds with this overall statutory purpose.

[30] Finally, the father asks that the costs be set off against child support at a rate of $350 a month. He currently pays $600 a month. The father states that there are no child support arrears owed. On the motion before Justice Finlayson, the father owed arrears because of the decision that adjusted support. On this occasion, the costs were set off against the arrears.

[31] The mother refuses to pay costs when ordered. Costs are intended to discourage and sanction inappropriate behaviour, but the mother to date has carried on despite unpaid cost orders. This is unfair to the father and cannot continue. However, the proposed set-off is problematic because the child may be the one that suffers. The court has the power to make orders under Family Law Rule 1(8) if a party fails to obey an order. Given the mother’s history of non-compliance, I will make a rule 1(8) order rather than ordering a set-off. The order gives the mother a reasonable period of time to pay the costs, with consequences if the costs are not paid.

[32] I make the following orders

The Appellant shall pay the Respondent his costs of the motion heard on June 29, 2021 in the amount of $7,000.
The costs shall be paid no later than November 30, 2021. The mother shall pay the costs by delivering a certified cheque in the amount of $7,000 payable to Normandin Chris LLP in trust.
If the Appellant fails to pay the costs, then the Respondent may bring a 14B motion to dismiss the Appellant’s appeal or seek whatever relief the father deems necessary. Such motion shall be heard in writing by Justice Shore, or another judge that she assigns. Neither party shall file material that exceeds 20 pages in total. If material exceeds this page limit, it shall not be accepted for filing with the court and the 14B motion shall be decided without the material that exceeds the limit.
Approval of this order as to form and content by the Appellant is waived.

C.Horkins J.

Date: October 7, 2021

M.B. v. A.F., 2021 ONSC 6488

Case Summary

overview

Legal Framework

Analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 5

Legal Tests 2

Legislation 3